On Friday about the Alaska Supreme Court granted an emergency motion for expedited consideration of the appeal of Judge Michalski's decision rejecting an injunction against the Friday release of investigator Branchflower's Troopergate report. Yesterday I commented on the Monday filing of the brief of the appellants, six Alaskan legislators acting for the McCain-Palin campaign. Also yesterday, Chief Justice Fabe recused herself from the case because her husband's law firm represents one of the subpoenaed witnesses. And a group of law professors filed a "friend of court" amicus curiae brief in support of Palin.
Today the appellees will file their brief, and the oral argument will be tomorrow at 3:00 p.m. (see UPDATE 2 below for a report on the argument).
Let's take a look at some of the cast of characters.
In addition to an Anchorage attorney, the appellants are being represented by lawyers from the Texas-based far right-wing Liberty Legal Institute and by the mega law-firm Gibson, Dunn & Crutcher, which includes Bush's Bush v. Gore lawyer and Solicitor General Ted Olson, Justice Antonin Scalia's son Eugene Scalia, and Miguel Estrada, the first Circuit Court of Appeals nominee to be filibustered (by the Democrats in 2003). Perhaps oddly, the Gibson team in the Alaska case is headed by Scott Hoyt, described on the firm's website not as a constitutional lawyer but as "focused on insurance coverage litigation" and who also handles "the full range of commercial litigation for clients in high tech industries such as telecom."
Gibson Dunn has been closely connected with both Bush and McCain. The firm successfully represented McCain in the suit alleging he was ineligible to run for president because he was born in the Panama Canal Zone. More controversially, the firm represents embattled GOP Congressman Jerry Lewis and paid a 1.5 million dollar signing bonus to hire Debra Wong Yang, the U.S. Attorney who was investigating Lewis. According to the New York Times,
Ms. Yang resigned under circumstances that raise serious questions, starting with whether she was pushed out to disrupt her investigation of one of the most powerful Republicans in Congress.... (If Ms. Yang) was pushed out to prevent justice from being done in a pending criminal matter, it would be a serious misuse of executive authority. It could also be obstruction of justice.
As I mentioned in yesterday's diary, a group of law professors has filed a "friend of court" amicus curiae brief, which argues that the trial court erred by treating the matter as a "nonjusticiable political question" (legalese for "a matter that the courts can't get involved with"). Who are these professors? At first, I could not see any connection. They are from all over the country, from law schools ranging from Florida A&M to Villanova. Many had no connection with "separation of powers" law or any other type of constitutional law. A bit of research revealed their connection: all are listed as Law Professors for McCain on the McCain web site.
The flaw in the professors' argument is that the trial court did not say that it was a "political question." Quite the contrary, Judge Michalski rejected the appellee's argument that the power to interpret the "fair and just treatment" clause was "solely within the province of the legislature." His only finding was that the legislature's determination of "fairness" is entitled to a degree of deference and that the legislative standard is different from the judicial one, because the legislature by nature is a political body where partisan opinions are often expressed.
The appellants' primary legal claim is based on Article 1, Section 7 of the Alaska Constitution, which provides:
The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed.
Judge Michalski held:
In evaluating claims of unfair treatment by the legislature, the court must carefully balance the rights of the individuals being investigated while still respecting the province of the legislature. Where reasonable minds may differ as to whether individuals are being treated fairly, the court should defer to the legislature.
The appellants ask the Supreme Court not to give any such deference to the legislature. They contend that the same due process "appearance of impropriety" that is applied to judges should be applied here. However, as Judge Michalski recognized, the legislature by nature is a political body, where the members take public positions and generally back their own parties. Thus, the standard for whether a legislative investigation is "biased" could not logically be the same as the standard for determining whether a judge should be recused for "appearance of impropriety." At issue here is an investigation, not an adjudication. Under the logic of the appellees and the supporting law professors, a criminal suspect's due process rights would be violated if an investigating police officer says publicly that he believes the suspect committed a crime. But this is not the law.
The appellants are now focusing on the "fair and just treatment" clause and appear to have abandoned their lower-court argument that only the governor appointed Personnel Board has jurisdiction to investigate members of the executive branch.
The appellants are sticking with the story that Monegan was fired for insubordination. We know that Palin's purported reason for firing Walt Monegan has been constantly changing.
The appellee's brief is not due for filing until today at 4:30 p.m. Alaska time, not long before tonight's Obama-McCain debate. I'll probably be too caught up in the debate to write anything tonight (I will at least update this diary and post a link to the brief). However, I expect them to repeat the effective rhetorical questions from their lower court brief:
What exactly is the legal principle that Plaintiffs are urging this Court to adopt? That the Executive's "due process rights" entitle her to be investigated, if at all, only by legislators of her own party? Or only by legislators who have voiced no opinions on the subject matter of the investigation? Or only by legislators who do not believe there is anything to investigate? Or only in non-election years?.... It is inescapable that there is no "due process" right to have only "nonpartisan" legislators (an oxymoron if there ever was one) involved in legislative investigations.
Actually, the only really "partisan" statements that appellants cite as those of Senator French, who did perhaps open his mouth a bit too much by public stating he was "angry" with Palin for firing Monegan, and that the result of the investigation might be an "October surprise" that will be "damaging" for the GOP.
But French is not conducting the investigation, Steve Branchflower is. On what basis do the appellants claim that Branchflower is biased? According to John McCain's website and the appellants' brief, Branchflower is biased because he "conspired" with French (he discussed with French the list of witnesses he wanted subpoenaed) and (gasp) because, as a prosecutor, he "worked closely" with the police while Monegan was chief of the Anchorage Police. And (double gasp), Branchflower's wife (a police detective) said in 2001 (commenting on Monegan's appointment as chief of police) that "Monegan is a respected supervisor because he listens to his employees and isn't afraid to change course if something isn't working out."
Andrew Halcro is confident that Judge Michalski's decision will be affirmed. Even if the decision is reversed in part, anything short of an injunction prohibiting the release of Branchflower's report would be a victory. For example, the Supreme Court could say that French is too partisan and must be recused but that Branchflower may continue with his work. Then the report will still come out on Friday (unless Branchflower himself delays it, perhaps to take the depositions of the seven witnesses who had previously failed to honor their subpoenaes). Todd Palin is expected to submit written answers to Branchflower's questions on Wednesday (if this really were a partisan witch hunt, Branchflower would have insisted that the First Dude testify like the others).
For bios of the Supreme Court justices who will decide the case, see here.
UPDATE -- The appellees have filed their brief. I had not realized that the motion for creation of the investigation and the appointment of Senators French was made by a Republican.
UPDATE 2 -- "Sometimes they don't know what they're talking about," said the local pro-Palin lawyer about the McCain-Palin campaign.
It seems that the justices "peppered" the lawyers with questions during Wednesday's oral argument, according to the Anchorage Daily News.